Mediation as a Transformative Mechanism in Insolvency Resolution Under the IBC: Emerging Dimensions Under the Mediation Act, 2023

Author:Ashok Kumar Sharma

Abstract:
The Insolvency and Bankruptcy Code, 2016 (IBC) was enacted to ensure time-bound insolvency resolution, maximisation of asset value, and balancing of stakeholders’ interests. Nevertheless, increasing procedural delays, adversarial litigation, and mounting pendency before the National nyny Law Tribunal (NCLT) have diluted the efficiency of the insolvency framework. In this evolving context, mediation has emerged as a constructive and commercially viable mechanism capable of harmonising creditor-debtor relations while preserving enterprise value. The enactment of the Mediation Act marks a significant legislative shift towards institutional and pre-litigation mediation in India’s dispute resolution architecture. This paper critically examines the growing interface between mediation and insolvency law in India with special reference to recent developments under the IBC regime. It analyses how consensual dispute resolution can supplement the rigid adjudicatory model of insolvency proceedings, particularly in operational debt disputes, inter-creditor disagreements, avoidance transactions, and pre-packaged insolvency mechanisms. The study further evaluates the Insolvency and Bankruptcy Board of India’s proposal permitting operational creditors to opt for mediation prior to initiating proceedings under Section 9 of the IBC, thereby institutionalising a culture of negotiated settlements within insolvency jurisprudence. The paper argues that mediation can substantially reduce litigation costs, preserve business continuity, maintain commercial relationships, and decongest insolvency tribunals without undermining the objectives of the IBC. It also explores the compatibility of mediated settlements with the principles of creditor autonomy, procedural fairness, and economic efficiency. By examining comparative global practices and contemporary Indian reforms, the paper concludes that mediation represents not merely an adjunct remedy but a transformative jurisprudential tool capable of reshaping insolvency governance in India from adversarial resolution to collaborative restructuring.

Keywords:Insolvency Law, Mediation, Corporate Restructuring.

DOI:10.46333/ijtc/15/1/11

International Journal of Trade & Commerce (Vol: 15 Issue:1)